– By Apoorva Mishra

Compulsory licensing is an involuntary licensing where the licensor is unwilling to grant the license to the willing licensee, but this entire agreement of compulsory licensing is enforced by the state, by which the licensor has to transfer the rightful authorization of the patent to the licensee, against all his wishes. Government is basically the protector and acts as a guardian for the public at large. Therefore, for the benefit of nation, it has the right to grant the patent and next moment take away the patent and patentee’s monopoly over it. The requirements of the society at large supersedes against the rights of the patent holder to answer the pressing public requirements. Following situations may attract compulsory licensing where IP holder:

• Charges unfair and discriminatory prices; or
• Limits production of goods and services; or
• Restricts technical or scientific development of goods and services; or
• Desecrates consumer welfare.

Internationally, compulsory licensing has been supported saying that it helps in catering to the needs of the public at large and development of developing and underdeveloped countries. Compulsory Licensing has been mandated by several agreements like WIPO (World Intellectual Property Organization), Paris Convention for the promotion of industrial property. TRIPS has envisaged several conditions for issuance of compulsory licensing:

1. The person or company should apply for licensing after 3 years to the grant of patent.
2. Before applying for compulsory licensing, the person or company should make an attempt for voluntary licensing.
3. The person or company then should apply to the board for compulsory licensing if the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time.

In India, we have seen a growth of many foreign companies reason being they hold knowledge and they rule the terms.  Therefore, there exists a chance that these companies can abuse their positions. Compulsory licensing of IPRs in cases of such abuses would be an apt remedy that will deter these companies from abusing their dominant positions. Keeping in mind Indian conditions compulsory licensing will spur growth and development in Indian industrial sectors. Keeping in mind the size of Indian market the incentive for innovation will not erode to the extent that might deter companies from entering in to innovative endeavours as courts have granted reasonable royalties in cases where compulsory licensing has been awarded. Compulsory licensing will make the products more accessible to public and it will be beneficial for public welfare.

The developing and the under developed countries are not much concerned about protection of patent laws as much as developed countries are because they don’t have resources to spend on development of costly mechanism to ensure protection of patents.

There are few reasons behind this:

• by allowing piracy, developing and underdeveloped countries can ensure availability of needed goods and services to their citizens at affordable prices
• The local industries which produce counterfeit goods employee thousands of workers and therefore reduce unemployment.
• In order to advance in science and technology, they need maximum access to intellectual property of advanced nations.

More than 80% patents in developing and underdeveloped countries are owned by citizens of technologically advanced countries. Consequently, their governments are not willing to spend huge amounts in developing effective administrative mechanism to enforce IPRs of citizens of advanced states.

The Government will, however, pay royalty to the patent holder for using his patent without his permission, but this will in turn discourage the patent holder from making any further inventions or innovations. The discouraged Research & Development shall lead to deteriorating economic growth. The developing or under-developed countries shall refrain from investing in R & D, indirectly affecting the economy, and will settle for generic goods. This might increase the risk of goods turning into inferior quality. Ultimately, as a result of weak intellectual property regime, a country becomes less competitive, and brain drain is an obvious result.

Compulsory licensing becomes inevitable to deal with the situations of “patent suppression”. By incorporating an effective mechanism of compulsory licensing, governments of developing countries may pressurize the patent holders to work the patent to maximum national advantage. The threat of non-voluntary licensing may be helpful in negotiating a reasonable price of the needed drug acceptable to both the patent owner and the government. Compulsory licensing might be necessary in situations where its refusal may prevent utilization of another important invention which can be significant for technological advancement or economic growth.

Compulsory licensing ensures that a good number of producers or manufacturers are there to cater to the needs of society; it spurs competition and consumer welfare. Those who argue against it saying that it leads to erosion in incentive for innovation forget that a right is always accompanied by a corresponding duty, and failure to perform that duty might have its implications in law.

The abuse of patents is a very likely to occur where the patentee has its rights protected under Patent laws. The patent holder has monopoly rights but they are more likely to abuse. The patent holders are often tempted to indulge in to anti-competitive practices and they try to extend their monopoly into areas where they do not have rights protected by IPRs. Software companies like Microsoft, several pharmaceutical companies, as discussed above, are protected under the patent laws and most of the time they are the sole manufacturer. So this gives them an opportunity where they can dictate their terms over the entire market which might lead to exploitation of others right in the market. In such a scenario, compulsory licensing comes into play, which acts as a remedy to abuse of patents, where government intervention leads to increase in the versatility of the market leading to a monopolistic market rather than a monopoly, the consumers have a choice and the product will be easily available, where the opponents have argued that compulsory licensing will lead to discouragement for innovations, but this also true that this will lead to a heated competition, which will in return lead to a peer pressure over the patent holder to work more over his product, get distributers, improve his research and product and make it available to the public at large. This will lead to an increase in the economy. There are reasonable apprehensions that FDI may dry up if compulsory licensing is granted as a remedy, to that essential facility doctrine must be adopted, so that only what is essential and necessary should prevail.

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– By Apoorva Mishra

Censorship the control of the information and ideas circulated within a society — has been a hallmark of dictatorships throughout history. In the 20th Century, censorship was achieved through the examination of books, plays, films, television and radio programs, news reports, and other forms of communication for the purpose of altering or suppressing ideas found to be objectionable or offensive. The rationales for censorship have varied, with some censors targeting material deemed to be indecent or obscene; heretical or blasphemous; or seditious or treasonous. Thus, ideas have been suppressed under the guise of protecting three basic social institutions: the family, the church, and the state.

Censorship is a global phenomenon. Time and again, there have emerged news of something getting banned somewhere in the world for reasons that seem unreasonable to many while a necessity to the rest. In India, specially, censorship exists in mass abundance. While each country and each culture censors the media in one way or the other, the amount of censorship or the cut-off level which defines what to show and what not, differs.

There are also different types of censorship. One of the most common criteria behind censorship is the age limits for viewing different media. Sometimes the censorship can be a blanket ban on a certain taboo topics and the definition of a taboo topic would be defined according to the governing authority in the country. So, while the levels of media censorship exist, people are still calling for absolute removal of all types of censorship. Then again, there are proponents who think that its use creates a balance in what ought to be said and written, which again, the opponents criticize on the basis of the threat it poses to the right of speech.

Advantages and Disadvantage of censorship

It is true that media is responsible for spreading information about current events all around the world, the need of the hour is balance of information given. Certain times violent speeches and derogatory comments given by people towards a particular race and religion. While the act in itself can be condemned, there is no need of repeated air-time given to the incident. This can only incite the masses against the said person or the organization he/she is associated with. Such media tactics are often used by political parties for selfish means while ignoring the greater good of the society. This can only bring unrest among the masses and disrupt the peace in the society. Some people may try to spread nonsensical propaganda through unsuspecting media. Censorship will prevent the public display of disrespect to any particular individual or community and promote political correctness.

However, Censoring of information may lead to a wrong image perceived by the public. It gives rise to and hides abuse of human rights. If the news coming from a war zone does not show the true nature of the damage inflicted, how can a person be aware of the real situation of the war? If to say that the real death toll and associated imagery should be censored, it will be equivalent to denying even the presence of war. Death is real and people affected in a war zone pay for it with their lives and we owe it to them to know their real stories. Don’t censor the media; rather tackle the issues leading to a situation that might need to be censored. Hiding the complete picture doesn’t erase its presence, merely gives a false perception.

Conclusion

Although the right to freedom of expression does not require an absolute ban on prior censorship, this should be a highly exceptional measure, taken only when a publication threatens grave harm, such as loss of life or serious harm to health, safety or the environment. An article deemed defamatory, blasphemous, obscene or overly critical of the government would rarely if ever meet this threshold. Moreover, a system whereby media content must be officially cleared before it can be released would be unacceptable; its harm to freedom of expression would plainly far outweigh the benefit to its goals. An absence of censorship might not be a perfect notion, as it can cause chaos. But it also doesn’t mean that the government uses it for its own personal gain by suppressing dissent. Ours is a democratic nation, yet has more censorship than most nations.

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– By Apoorva Mishra

In India, media as a whole is regulated through a gamut of statutes and codes. Being one of the largest industries, its regulation is regarded significant in the interest of public and nation as a whole. The real value of such a regulation is to handle the relationship between any segment of media and the public. In case of Television media, the regulation sets the expectations of that relationship and allows the television media to be the “service provider” to be called to account if those standards are not met. On a face value, it works very well if nothing hinders the legal standard and the most importantly the moral standard of the society. It is expected that the Regulatory bodies can mediate relatively informally, away from the court rooms and hopefully effectively to resolve the complaints and improve their performance.

It is known that whenever regulation is introduced in any field where influence on public is huge, there will be a mix of economic, political and cultural concerns and approaches. One could see the impact of visual media to be far more than the print media and hence regulation over it has always been more than its other counter parts. Earlier, broadcasters needed limited access to airwaves, so the state could license away to any private player. This gave an opportunity to increase revenue as well as to regulate the content to be displayed. Technologically, airwaves have also been found to be relatively easier to regulate so the state had full advantage to impose more demanding regulation. Whether there is harm on the right to free trade or free expression, is a later concern, the state was fully aware of its potentially powerful influence over large swathes of audience, hence, former right is allowed to be overridden.[1]

Everything seemed fine till the age of New Economic Policy was introduced in the 1990s which opened the gateway for the private players to serve the public with negligible regulation. This was followed by several consequences both at macro and micro level. Though few hurdles were apprehended but at the same time it pose a problem to protect the much coveted fundamental right of freedom of speech and expression which is guaranteed under Article 19 of the Constitution. Indian society is now going through a process of transition and media is also responding to the various needs to it. However, the subtle balance between Article 19 freedom and public morality and decency is also a surmountable task to attain. To decide such controversial issues, it is of paramount importance that a genuine and neutral body is judging the process.

Media regulation in India is currently a maze, with multiple agencies involved in formulating and implementing policy, drafting and enforcing legislation. To make matters worse, they often appear to be unaware of each other’s interventions and seem to work at cross purposes. Among the official organisations currently involved in media regulation are the following:

• Union Ministry of Information & Broadcasting: It functions as policy-maker and content
• Telecom Regulatory Authority of India: At one point it was given the responsibility for regulation of the broadcast sector (in addition to the telecommunications sector) but it backed out and currently it is involved primarily with issues of technology, such as carriage regulation and pricing.
• Inter-Ministerial Committee: It was constituted by the Ministry of Information & Broadcasting to look into complaints regarding violations of the programme and advertisement codes connected to the Cable Television Act and Rules.

These are the few bodies which are often encountered when issues regarding regulation of television content surfaces. It is true that the idea of an independent regulatory body to regulate the media content is revolutionizing the entire nation. Moreover, one must also accept and adhere to the fundamental right of freedom of expression granted by our Constitution. However this right be regarded as a license to impede our morality and ethics.

[1] Ammu Joseph, Broadcast regulation in the public interest: A Backgrounder, InfoChange Media, available at

http://infochangeindia.org/Media/Broadcast-Laws-and-Regulations/Broadcast-regulation-in-the-public-interest-A-backgrounder.html

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– By Apoorva Mishra

Everyone has a right to seek, impart and receive information under the right of freedom of expression. This right to Freedom of Information is the key to achieving many other rights, securing democracy and enabling development. It is also intended to promote a culture of openness among public authorities and to give people the right to access much of the information they hold.

Governments and public bodies hold masses of important information. They hold it on behalf of the public and should therefore:

• proactively publish information in the public interest.
• provide open access to people wanting specific information.

The right of freedom of information is based on the principle that the government is required to serve the people. Information forms a very important part of the democracy. It leads to accountability, transparency and good governance.

Role of Information?

• Gives people a fair chance to know the information, to know what’s happening and give their opinions and debate on the relevant matters.
• Keeps a check on the government and makes sure that there is transparency maintained.
• Ensures free and fair election.
• Gives authority to the civil society and the journalists to expose corruption and wrong doing.
• Enables people to have access to their personal information.

‘Information’ should include all information held by a public body, regardless of form, creator, date, or classification. Public bodies include executive, legislative and judicial branches of the state, as well as public corporations and publicly-funded bodies. It should be the responsibility of the information holder to prove that it is legitimate to deny access.

Exemption

Most open records laws are based on the presumption that everything is public, unless specifically exempted. Some states specify certain categories of information that always are public. Many exceptions to public access are subject to agency discretion, so one can always try to convince officials that it would be in the public’s interest to release the requested information. In most states, only a few specifically designated types of records are required to be kept secret, for example:

Law enforcement and investigative files: These may be exempt across the board, or may resemble the federal statute, which permits information to be withheld only when some specified harm to the investigation or an individual involved would result from disclosure.

Commercially valuable information: These exemptions usually protect from disclosure information provided by private companies to the government, such as commercially sensitive or trade secret information in licensing or contract applications.

National security: These exemptions are intended to protect from disclosure those documents that if released could potentially harm security interests. At the federal level, these are often documents containing “classified” information.

Freedom of Information and Media

Freedom of Information should not be misused by the media by generating stories against the Government. Freedom of Information is an important tool to provide better understanding to the people who want to know how the government functions, why or how the government makes a particular decision. Media, on the other hand, would prefer a less open government. It is the job of journalists to hold the government to account on behalf of the public. The Freedom of Information Act is a vital tool in their armoury which should not and must not be removed or weakened.

Conclusion

Despite the remarkable trend towards adoption of Freedom of Information, the public in general still faces a lot of obstacles. There is a need for better effective mechanism to cater to public needs. The principle of maximum disclosure dictates that individuals should be granted access to all information held by public bodies, except for very limited and clearly specified categories, subject to harm and public interest tests. It is not unusual for exceptions, along with the reference to official secret acts, to justify arbitrary denials of information access. Perhaps the greatest challenge of all is the shift from a culture of secrecy to one of transparency. This entails a fundamental change in mindsets of politicians and bureaucrats, as well as building public awareness to encourage active exercise of the right to know.

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– By Apoorva Mishra

In 2004, Google announced two programs: “Partner Program,” involved the “hosting” and display of material provided by book publishers or other rights holders and second “Library Project,” involved the digital scanning of books in the collections of the number of university libraries. The Partner Program and the Library Project together comprise the Google Books program (“Google Books”) where all types of books are encompassed. Google creates more than one copy of each book it scans from the library collections, and it maintains digital copies of each book. Google did not seek or obtain permission from the copyright holders to digitally copy or display verbatim expressions from in-copyright books. Google has not compensated copyright holders for its copying of or displaying of verbatim expression from in-copyright books or its making available to libraries for downloading of digital copies of in-copyright books scanned from their collections. Google also provides snippet view for the books for the users to read. Plaintiffs commenced this action on September 20, 2005, alleging, inter alia, that Google committed copyright infringement by scanning copyrighted books and making them available for search without permission of the copyright holders.

ISSUE

Whether Google’s use of copyrighted work is “fair use” under the copyrighted laws?

Analysis

Doctrine of Fair Use

The Copyright Act gives copyright holders the exclusive right to reproduce works for a limited time period. Fair use is a limitation on this right. Fair use allows people other than the copyright owner to copy part or, in some circumstances, all of a copyrighted work, even where the copyright holder has not given permission or objects.

Copyright law does not give copyright holders complete control of their works. Copyrighted works move into “the public domain” and are available for unlimited use by the public when the copyright term expires. But even before works enter the public domain, the public is free to make “fair uses” of copyrighted works. The Supreme Court has described fair use as “the guarantee of breathing space for new expression within the confines of Copyright law.”[1]

Fair Use – Transformative in nature

Fair use is more likely to be found when the copyrighted work is “transformed” into something new or of new utility, such as quotations incorporated into a paper, or perhaps pieces of a work mixed into a multimedia product for your own teaching needs or included in commentary or criticism of the original and are not simply a reproduction. There are four factors determining fair use:

1. Purpose and character of use.
2. Nature of copyrighted work
3. Amount or Substantiality of Portion Used
4. The Effect of the Use in the Potential Market or for the Value of Work

The key consideration is:  Whether the use of copyrighted work is transformative or not?

• Google’s use of the copyrighted works is highly transformative. Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books.
• Google Books has become an important tool for libraries and librarians and cite-checkers as it helps to identify and find books. The use of book text to facilitate search through the display of snippets is transformative.

• Google uses snippets of text to act as pointers directing users to a broad selection of books.

• Similarly, Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Words in books are being used in a way they have not been used before. Google Books has created something new in the use of book text the frequency of words and trends in their usage provide substantive information.
• Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it adds value to the original and allows for the creation of new information, new aesthetics, new insights and understandings.
• Google does not sell its scans, and the scans do not replace the books. While partner libraries have the ability to download a scan of a book from their collections, they owned the books already — they provided the original book to Google to scan.
• Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book.
• Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion.

Google Provides various significant public benefits:

• It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.

• It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books.
• It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books.

• It generates new audiences and creates new sources of income for authors and publishers.

• Many authors have noted that online browsing in general and Google Books in particular helps readers find their work, thus increasing their audiences.
• Further, Google provides convenient links to booksellers to make it easy for a reader to order a book. In this day and age of on-line shopping, there can be no doubt but that Google Books improves books sales.

CONCLUSION

Google is entitled to summary judgment with respect to plaintiffs’ claims based on the copies of scanned books made available to libraries. Even assuming plaintiffs have demonstrated a prima facie case of copyright infringement, Google’s actions constitute fair use here as well. Google provides the libraries with the technological means to make digital copies of books that they already own. The purpose of the library copies is to advance the libraries’ lawful uses of the digitized books consistent with the copyright law. The libraries then use these digital copies in transformative ways. They create their own full-text searchable indices of books, maintain copies for purposes of preservation, and make copies available to print-disabled individuals, expanding access for them in unprecedented ways. Google’s actions in providing the libraries with the ability to engage in activities that advance the arts and sciences constitute fair use.

[1] Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164, 127 L. Ed. 2d 500 [1994]

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On August 24, 2012, a jury on the Apple v. Samsung case returned a verdict in the long, legal battle over several Apple patents relating to Apple’s iPhone and iPad. The jury submitted a verdict awarding Apple 1.05 billion dollars as damages that must be compensated by Samsung.[1] This case brought these two incentives of patent protection in light of design patent protection.

DESIGN PATENT

Unlike utility patents, design patents only protect the ornamental design for an article of manufacture.[2] They do not cover structural or functional elements. In fact, design patents are invalid where the design is dictated by function.[3] Additionally, rather than having a series of written claims at the end of the patent, the figures and, at times, the description, are used to define a single claim to which the design patent is directed.[4]

The infringement analysis for design patents is similar to utility patents—the first step is construing the patented design. However, design patents protect only ornamental designs.

Second step is, ordinary observer test. Under that test, an ordinary observer compares the differences in the patented design and the accused product in view of the prior art to determine if they are substantially the same such as to deceive the ordinary observer into purchasing one believing it to be the other.[5]

THE APPLE V. SAMSUNG CASE

In regards to the Apple v. Samsung case, one of the patents in controversy, the D’677 patent, protects the design of the iPhone. First, the D’677 patent protects the surface design: which consists of a highly polished, reflective surface that covers over the entire front face of the phone, and is considered to be an article of manufacture. In addition, the D’677 patent applies to the shape or configuration of the phone’s reflective surface, which consists of a large rectangular display occupying most of the phone’s front face.[6]  The corners of the phone are rounded. The latter part could be considered the shape and configuration of the whole part of the phone. Therefore, design patent D’677 covers both aspects of a design patents.

Samsung claimed that, Apple’s D’677 patent was invalid because it was not patentable in light of the prior design in Japanese Patent No. 1,241,638.43 The court concluded that the ′638 design was sufficiently different from the D′677 patent, because it would not have been obvious to a designer to adopt certain features contained in the D’677 patent.[7] The jury found that none of Apple’s patents were invalid.

Infringement under Design Patent

An infringement of a design patent includes, “during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colourable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colourable limitation has been applied shall be liable to the owner to the extent of his total profit.[8] Infringement does not require absolute identity between the patented design and the accused design. The patentee must prove, however, that the accused design appropriates aspects or features in the patent design that distinguishes it from the prior art.[9]

In other words, in order for an infringement claim to be a valid infringement claim the infringer cannot include only a part of the patented design.[10] Instead, the infringer must incorporate the overall design. Furthermore, it must be the claimed elements of the design, not the commercial embodiment of the design.[11]

In the battle between Apple and Samsung, the jury found that Samsung’s smart phones had not passed the Ordinary Observer Test, and that a consumer would find no difference in the designs of Apple’s D’677 patent and Samsung’s smart phones. Therefore, the jury concluded that that Samsung’s smartphones had infringed on Apple’s D’677 patent

CONCLUSION

The case determines the power of patent holders to obtain protection, and how they can use it to maintain advantage over competitors. In essence, Samsung’s argument that Apple has now used the courts to shut down competitors that tried to advance upon functional designs that result in more competition and better products can be construed as a partially valid theory. The case does not directly impact any particular design patent law or overrule a prior decision but it speaks more to patents’ influence over the products the public uses every single day. In the current case, Apple has several utility and design patents in addition to other related causes of action. The fact that Apple can take rectangular corners and round corners and use it to stop a competitor from selling a smart phone that consumers around America use, demonstrates the potential power of such protection. This not only makes competitors reluctant to risk a negative reputation and money in extended litigation over a controversial design, but it can inhibit new start-ups to create competing designs in fear of litigation from Apple or any other large corporation with several thousands of patents and millions of dollars allocated just for litigation

[1] Apple, Inc. v. Samsung Electronics Co., Ltd., 678 F.3d 1314, 1317 (Fed. Cir. 2012)

[2] 35 U.S.C. § 171. See also OddzOn Prods. Inc. v. Just Toys Inc., 122 F.3d 1396, 1405 (Fed. Cir. 1997).

[3] OddzOn Prods. Inc. v. Just Toys Inc., 122 F.3d 1396, 1405 (Fed. Cir. 1997); Lee v. Dayton-Hudson Corp., 838 F.2d 1186, 1188 (Fed. Cir. 1988).

[4] Elmer v. ICC Fabricating, Inc., 67 F.3d 1571, 1577 (Fed. Cir. 1995).

[5]  Gorham Co. v. White, 81 U.S. 511, 528 (1871).

[6] Alan F., Jury Verdict Form from Apple v. Samsung Patent Trial Is Released, PHONE ARENA

http://www.phonearena.com/news/Jury-verdict-form-from-Apple-v.-Samsung-patent-trial-is-released_id33703.

[7] Supra note 1

[8] 35 U.S.C.A §289 (2010).

[9] Robert S. Katz, Infringement of Design Patents in the United States, 10 U.BALT.INTELL.PROP.L.J.117 (2002)

[10] ContessaFood Prods., Inc. v. Conagra, Inc., 282 F.3d 1370, 1378-79, 1382 (Fed. Cir. 2002).

[11] Payless Shoesource, Inc. v. Reebok Int’l, Ltd., 998 F.2d 985, 990 (Fed. Cir. 1993)

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The statement of claim alleges on the reduction to material form of a part of the ritual knowledge of the Ganalbingu people by the creation of the artistic work, the first applicant held the copyright subsisting in the artistic work as a fiduciary and/or alternatively on trust, for the second applicant and the people he represents.[1]

It is contended that these rights arise because second applicant and those he represents have the power under customary law to regulate and control the production and reproduction of the corpus of ritual knowledge.

It is contended that the customs and traditions regulating this use of the corpus of ritual knowledge places Mr Bulun Bulun as the author of the artistic work in the position of a fiduciary, and, moreover, make Mr Bulun Bulun a trustee for the artwork, either pursuant to some form of express trust, or pursuant to a constructive trust in favour of the Ganalbingu people.[2]

The right to control the production and reproduction of the corpus of ritual knowledge is said to arise by virtue of the strong ties which continue to exist between the Ganalbingu people and their land.

EQUITABLE RIGHTS

Equitable rights are rights created and enforced by the court where it would be unconscionable to permit the legal owner of property to keep the benefit of property to herself.[3] The Applicant argued that equitable rights were created in the artistic work given the nature of the artwork. Mr. George M represented those who have the power under customary law to regulate and control the production and reproduction of the corpus of ritual knowledge of the Ganalbingu people. It was argued that Mr. Bulun Bulun held the copyright subsisting in the artistic work on trust or alternatively as a fiduciary for Mr. George  and the Ganalbingu people.[4]

Was there an Express Trust?

The existence of an express trust depends on the intention of the creator. To express an intention to create trust, it is not necessary that there be any formal or technical words. Any apt expression of intention will suffice. The intention to create a trust must be manifested in some form or another.[5] Mr. Bulun Bulun did not hold either the artwork or the copyright in it in trust for the Ganalbingu people. The fact that Mr. Bulun Bulun was entitled in customary law to sell his work and retain the profits himself was seen by the judge to be inconsistent with there being an intention to create an express trust.

Was there a Fiduciary Duty?

Fiduciary refers to a relationship of one person to another, where the former is bound to exercise rights and powers in good faith for the benefit of the other. Unless expressly entitled, a court of equity will not allow a person in a fiduciary position to make a personal profit or to put himself in a position where her duty and her interest conflict. [6] In Fiduciary relationships, the Fiduciary agrees to act on behalf of another person in the exercise of power which shall affect him in legal or practical sense.

ISSUE

Whether or not Mr. Bulun Bulun owed a fiduciary duty to the Ganalbingu people in respect of his role as author and copyright owner of the artistic work?

APPLICATION AND ANALYSIS

• The Court considered that a fiduciary relationship existed between the artist and the clan group and that the artist had a fiduciary duty towards his community. The artwork contained ritual knowledge that was of great importance to members of the Ganalbingu people.
• The Court noted that while the artist was entitled to pursue the exploitation of the artwork for his own benefit, he was still required under customary obligation to refrain from taking any steps which might harm the communal interests of the clan in the artwork.
• The right of the Ganalbingu clan, in the event of a breach of obligation by the fiduciary, is a right In personam to bring an action against the fiduciary to enforce the obligation. The court considered that Mr. Bulun Bulun had fulfilled this obligation by taking legal action against the infringers.[7]
• The Court established that the author had taken necessary actions through bringing the case to the Court.
• The Court dismissed the claims brought by Mr. George M due to the existence of fiduciary obligations owed by Mr. Bulun Bulun to the Ganalbingu people and fulfillment of these obligations.

CONCLUSION

The case switched from classical copyright dispute to the consideration of the indigenous communal rights. This case has become very famous in the field of indigenous traditional knowledge since the Court implied in its reasoning that communal right in artwork should be recognized. Moreover, it assumed that Australian legal system would permit for indigenous clan to bring an action to protect the artwork under other circumstances. On the whole, this case provides us with the following main observations. First, the recognition of communal ownership in indigenous artwork is supposed to be an adequate means of protection for indigenous interests. Second, the Court concluded that communal ownership in artwork cannot be recognized under existing copyright law.

[1] Bulun Bulun v R & T Textiles Pty Ltd. (1998) 41 IPR 513

[2] Australian Law Reports, John Bulun Bulun & Anor v R & T Textiles Pty Ltd(von Doussa J.), 157 ALR 193; available at http://www.utexas.edu/law/journals/tlr/sources/Issue%2090.1/Walker/Walker.fn075.Bulun%20v%20R%20and%20T%20Textiles.pdf

[3] Reproduced in Colin Golvan, ‘Aboriginal art and copyright: The case for Johnny Bulun Bulun’, in

European Intellectual Property Review, Vol 10, 1989, pp. 347–354

[4] Sally McCausland, “Protecting Communal Interests in Indigenous Artworks after the Bulun Bulun Case”, Indigenous Law Bulletin, July 1999

[5] Michael Hall, “Case Note: Bulun Bulun v R & T Textiles”, Vol 16, No 3 Copyright Reporter,November 1998.

[6] Nicholas Blackmore, “The Search for a Culturally Sensitive Approach to Legal Protection of Aboriginal Art”, (October 1999) 17 (2) Copyright Reporter.

[7] V. J. Vann “Copyright by way of fiduciary obligation – finding a way to protect Aboriginal art works” Media & Arts Law Review (2000) March p. 13

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